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Lawrence v. Matusewski

Decided: February 25, 1986.

WILLIAM J. LAWRENCE, PLAINTIFF,
v.
JOSEPH E. MATUSEWSKI, ET AL, DEFENDANTS. JOSEPH E. MATUSEWSKI, PLAINTIFF, V. NANCY LIVIGNE, ET AL, DEFENDANTS



Milberg, A.j.s.c.

Milberg

[210 NJSuper Page 269] These consolidated negligence actions arose out of an automobile accident which occurred on June 3, 1983. Plaintiffs' claims were subject to mandatory arbitration under the provisions of N.J.S.A. 39:6A-24 et seq., as implemented by the statewide rules governing automobile arbitration.*fn1 Following

the arbitration hearing on December 13, 1985, the arbitrator returned an award in favor of plaintiff William J. Lawrence in the amount of $30,000 plus $6,300 in prejudgment interest, and an award in favor of plaintiff Joseph E. Matusewski in the sum of $100,000 plus $20,000 in prejudgment interest. The arbitrator also rendered an award relative to the liability as between Matusewski and defendant Nancy A. Livigne, assessing 90% of the liability to Livigne and 10% of the liability to Matusewski.

None of the parties rejected the arbitrator's decision and demanded a trial de novo within 30 days of the award in accordance with R. 4:21A-6(b)(1). Pursuant to R. 4:21A-6(b)(2), plaintiffs Matusewski and Lawrence have made timely motions for confirmation of the award and entry of judgment thereon.

On February 6, 1986 defendant Livigne filed opposition to the confirmation motions and cross-moved for an order granting a trial de novo, nunc pro tunc.*fn2 Livigne states that there was a "breakdown in communication" between her counsel and the claims adjuster for her insurance carrier, Allstate Insurance Company.

Allstate's claims adjuster, Edward Williams, received from Douglas Hanna, Livigne's attorney, a letter dated December 17, 1985, apprising him of the arbitrator's award and requesting instructions as to whether his office should demand a trial de novo. Following receipt of a copy of the award from Hanna on December 20, 1985, Williams decided to reject it and move for a trial de novo. The ensuing events are described by Williams in his certification in support of the cross-motion:

To the best of my recollection and belief, I called Mr. Hanna's office and left a message with Mr. Hanna or his secretary in early January and instructed him to file a notice of motion for trial de novo. I assumed this would be done and

gave the matter no further thought until Mr. Hanna wrote me on January 28, 1986, and advised me of the motion by Plaintiff to enter judgment on the Arbitrator's award.

This was my first notice that the trial de novo had not been filed pursuant to my phone call.

Mr. Hanna advised me that he did not recall getting a message to file a motion for a trial de novo and that the time to file same had expired. Mr. Hanna stated he would have filed the motion had he received my request.

Livigne contends that this "communication breakdown" warrants a relaxation of the 30-day period within which a rejection of the arbitrator's award must be made, R. 4:21A-6(b)(1), and requests that her demand for a trial de novo be deemed filed nunc pro tunc.

In Cotter v. Dodd, 204 N.J. Super. 561 (Law Div.1985), and Cuccurullo v. Meskin, 204 N.J. Super. 386 (Law Div.1985), I found that the 30-day filing requirement is similar to the time limitation for filing a motion for a new trial under R. 4:49-1. Following this reasoning, I held that the time limitation in present R. ...


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